Law Expert: Stay on Marriage Equality Ruling Unlikely

An expert on marriage law says Utah’s fight against same-sex marriage is a long shot, even as the state is asking the U-S Supreme Court to stay last week’s court decision that legalized it. KUER’s Whittney Evans has more.

University of Virginia constitutional law professor Carl Tobias doesn’t think the Supreme Court will grant a stay in the Utah case. It’s already been turned down by the judge who issued the ruling and by the 10th Circuit Court of Appeals in Denver.

Instead, Tobias says the Utah case will likely grease the skids for federal judges in other states looking at same-sex marriage.

“For example, I am in Virginia,” Tobias says. “There are two challenges in Virginia in federal courts but they haven’t moved as quickly as the Utah case did. And I think other courts will look to the reasoning that Judge Shelby used and may or may not apply that reasoning to challenges in their states”

The Utah case follows a number of decisions in favor of same-sex marriage. Many of them cite the 2003 decision in Lawrence versus Texas, which allowed same-sex couples to engage in private sexual activity without interference from the state. U.S. District Judge Robert Shelby cited the case four times in his ruling on Friday.

In an interview last week with KUER before Judge Shelby’s decision, Bill Duncan with the Marriage Law Foundation in Utah said Justice Antonin Scalia wrote an impassioned dissent in that case, warning that it could open the door to legalize both polygamy and same-sex marriages.

“If the court’s opinion is read as broadly as it could be, it could lead to that,” Duncan says. “And, of course, he’s gonna look a little prescient after this. And maybe he’d guess that this was gonna happen and that was a correct prediction.”

28 other states have provisions in their state constitutions that prohibit same-sex marriage, similar to the one struck down by the federal court in Utah.